On May 18, 2021, Santa Clara County became among the first jurisdictions in the world to issue an Order requiring employers to determine if employees are vaccinated. Santa Clara County employers will need to move quickly, because the Order requires compliance within two weeks.

Here’s what Santa Clara County employers need to know now to comply with the Order:

  • The new Order requires all businesses and governmental entities to determine the vaccination status of their employees, onsite contractors and volunteers
  • The Order goes into effect May 19, 2021, when the county enters into the Yellow Tier of the State’s Blueprint for a Safer Economy
  • Employers have two weeks to comply with the vaccination information collection requirement
  • Santa Clara County has posted a template self-certification form that employees can use to disclose their vaccination status or confirm that they are declining to do so
  • Penalties for employers who fail to comply with the new requirement can be as much as $5,000 per violation per day

The County Health Department also published FAQs addressing employers’ ascertainment of employees’ vaccination status (linked here and reprinted in full, below) to help employers navigate the new Order.

ASCERTAINMENT OF VACCINATION STATUS

Why are businesses and governmental entities required to ask about and record the vaccination status of their workers?

Vaccines are the most effective way to reduce transmission of COVID-19, and to prevent people from getting sick or dying from COVID-19.  The rules that businesses and governmental entities have to follow to protect workers from COVID-19 are different depending on whether a worker is vaccinated or not. Businesses and governmental entities need to know the vaccination status of their workers so they can follow the rules, and so they can keep their workers, customers, and the community safe.

What should businesses and governmental entities do to determine vaccination status of their workers?

Businesses and governmental entities must determine whether each of their employees (and any contractors or volunteers working in their facilities) is fully vaccinated or not. Businesses and governmental entities must have a record for each staff member reflecting that person’s vaccination status.  The record may document a business’s or governmental entity’s review of documentation establishing vaccination status (e.g., the employee’s vaccine card), or the employee’s completed Self-Certification of Vaccination Status. A template Self-Certification of Vaccination Status is available here.

I have a worker who won’t tell me whether they are vaccinated? What do I do?

You must document that the worker declined to disclose his or her vaccination status, assume that they are not fully vaccinated, and follow all the rules that apply to workers who are not fully vaccinated.

What is the deadline for determining the vaccination status of my workers?

You must request and document the vaccination status of all personnel no later than June 1, 2021.  For workers who were not fully vaccinated or declined to disclose their vaccination status, you are required to request updated vaccination status every 14 days thereafter (e.g., June 15, June 29, July 13, etc.).

Do businesses have to keep records of who is vaccinated and who is not?

Yes. Businesses and governmental entities must maintain records of who is vaccinated and who is not until the provision of the Order requiring ascertainment of vaccination status is no longer effective. Businesses and governmental entities must follow applicable rules related to the confidentiality of these records.

What happens if I don’t ask about the vaccination status of my workers?

Because businesses and governmental entities have to follow different rules for vaccinated as opposed to unvaccinated employees, all businesses must determine the vaccination status of their employees. Any business that fails to ask about and record the vaccination status of its workers is subject to enforcement, and may be required to pay fines of up to $5,000 per violation per day.

Do I have to ask about and record the vaccination status of my workers if they are working remotely?

You are required to determine the vaccination status of all workers who perform any work at a facility or worksite in the county. You are also strongly encouraged, but not required by the Order, to determine vaccination status for all other personnel.

The new Order retires many of the requirements of the County’s prior October 5, 2020 Revised Risk Reduction Order. Businesses are no longer required to maximize remote working or submit Social Distancing Protocols to the County Public Health Department. In addition, the local rules on capacity limitations have been eliminated (but companies should consult the State Blueprint for a Safer Economy and the State’s Industry Guidance to Reduce Risk for information on what is allowed in counties in the Yellow Tier).

The new Order also provides a few new focused requirements related to vaccination, face coverings, and case reporting. In addition to requiring that employers determine the vaccination status of their employees (and onsite contractors and volunteers), the new Order requires:

For assistance navigating this or other COVID-19 health and safety orders, contact your Baker McKenzie employment attorney.